Is Section 97 of the S & CPA Applicable in Federal Courts?

This question is prompted by the confusion generated by the obviously conflicting decisions of the Supreme Court, on the applicability of Section 97 of the Sheriffs & Civil Process Act (S & CPA) to originating processes issued by the Federal High Court. That provision – which requires such processes issued by a court in a specific State of the Federation to be endorsed for service in another State – has recently attracted public scrutiny, in the light of such processes issued in several pre-election matters and election petitions arising from the recent general elections which did not bear such endorsements. Before proceeding further, though, it is necessary to set out the exact provisions of Section 97 of the S & CPA. It goes thus:

“Every writ of summons for service under this part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say) – “This summons (or as the case may be) is to be served out of the . . . . . . . . . . State ( or as the case may be) . . . . . . . . . . . and in the  . . . . . . . . . . State (or as the case maybe)”.

Focus of Section 97 of the S & CPA

It can be seen that the essence of Section 97 of the S & CPA is political or geographical, rather than judicial. In other words, the intention behind its enactment, is the division of Nigeria into 36 States and a Federal Capital Territory, instead of the hierarchy of its courts. This can clearly be gleaned from the unambiguous words of the provision: accordingly, they need no interpretation. What the provision simply says is that any originating process issued by a court (any court) in State A, which is intended to be served on a Defendant who resides in another State, other than the issuing State (State B), must bear an endorsement to that effect.

The section does not mention the type of the issuing court – whether Federal or State; it is silent on it. I believe that this distinction is significant, because, a lot of energy has been dissipated by commentators (and, lately by the Apex Court, itself – with respect) in apparently conflating the two, that is, ‘Court’ and ‘State’. I believe that this is a mistake – as the analysis of relevant decisions of the Supreme Court where the issue Directly arose, will presently show.

Precedent

The provisions of Section 97 of the S & CPA have been pronounced upon by the Apex Court over the years, in the following cases, inter alia:

1. ADEGOKE MOTORS v ADESANYA (1989) 20 NSCC, pt.II, pg. 327;

2. NWABUEZE v OKOYE (1988) 19 NSCC, pt.III,  pg.53;

3. SKENCONSULT v UKEY (1981) 12 NSCC, p.1;

4. OWNERS OF M.V.ARABELLA v NAIC (2008)11 NWLR, pt. 1097, pg. 182;

5. IZEZE v INEC (2018) LPELR-44284(SC) pg. 17-23, parag.B;

6. FAYEMI v ONI (2019) LPELR-49291(SC) pg.12-19, parag. B; pg. 28-33, parag. B;

7. OMAJALI v DAVID (2019) 17 NWLR, pt. 1702, pg. 438; and

8. SAMUEL v APC, Appeal No: SC/CV/1482/2022, Unreported, delivered on 13th June, 2023;

9. PDP v UCHE, Appeal No: SC/CV/1402/2022, Unreported, delivered on 6th Jan. 2023;  

10. BIEM v SDP (2019) 12 NWLR, pt.1687, pg 377;

11. BOKO v NUNGWA (2019) 1NWLR, pt.1654, pg. 395

It will be noted that, in all these cases, the court in question was the Federal High Court, that is, the issue was whether Section 97 of the S & CPA was applicable to an originating process issued by a Federal High Court in one State, for service on a Defendant resident in another State of the Federation.  Whilst the Apex Court held in the cases of IZEZE, FAYEMI and OMAJALI that the provision was applicable to such processes, in the subsequent cases of SAMUEL, UCHE, BIEM and BOKO, the court went in the other direction, and held that the provision was inapplicable to that court. In this regard, the reasoning of the Apex Court in its most recent decision (SAMUEL v APC) is instructive: having recognised the two conflicting lines of its own decisions, the court consciously chose the latter in time (that of PDP v UCHE), for that reason alone, that is, it’s novelty. 

Beyond the confusion and uncertainty which such conflicting decisions of the Court creates, the circumstances in which that choice was made (the fact that it, ultimately, did not avail the ‘winning’ party, as the court declined to pronounce on the merits of the appeal) suggests – to all intents and purposes – that it was a hollow victory, one that conferred no benefit at all on the ostensible judgement-creditor. In other words, it was an academic exercise, bereft of any utilitarian value to the ‘victor’. 

I believe that this much is clear from the contributions of Jauro and Ogunwumiju, JJSC, in that case, as follows, respectively:

“Notwithstanding the foregoing, I am afraid that this is as far as this court can go concerning the issues raised in the instant appeal. I say this because a consideration of the other issues in the appeal will amount to nothing more than an academic exercise, since whatever decision that is arrived at will not confer any benefit on the successful party”;

“I am of the view that this appeal being statutorily incompetent, should be struck out. In the first place, the issue of the applicability of Section 97 of the Sheriffs & Civil Process Act had been settled by this court hitherto, to the effect that the section is not applicable to the Federal High Court and that an originating summons is valid and can be served validly without the endorsement of a notice for service outside jurisdiction. This is because the Federal High Court exercises jurisdiction over the whole country . . . The point on which this appeal turns, however, is on the issue of whether this court can still exercise jurisdiction over this matter, in view of the fact that the trial court is now divested of jurisdiction through effluxion of time.”

So much for the Federal High Court. What about other courts and tribunals, such as Election Petition Tribunals and the National Industrial Court of Nigeria? In this regard, while I concede that it is tempting to extrapolate and conclude from the decisions in SAMUEL v APC and PDP v UCHE that Section 97 of the S & CPA is applicable to other courts with similar ‘nationwide’ jurisdictions as the Federal High Court, I, however submit that that would be simplistic. This is because, as previously submitted, to do that would be to confuse physical territory (territorial jurisdiction) with judicial status or level of court – either Federal or State. Yes, Nigeria is one, in terms of the geographical or territorial jurisdiction of the Federal High Court, the National Industrial Court and, indeed, the Court of Appeal when it sits as the Presidential Election Tribunal. 

But, that would be missing the point, which I believe – with respect – was the case when the Apex Court held in the aforesaid cases that the nationwide territorial jurisdiction of the Federal High Court, ipso facto, meant that Section 97 of the S & CPA was inapplicable to the processes of that court. I respectfully submit that, the ordinary grammatical meaning of ‘State’ as used in that provision simply refers to one of the 36 States recognised under Section 2(2) of the Constitution (which, incidentally also mentions the Federal Capital Territory, Abuja – just like Section 97 of the S & CPA does). I submit that to interpret Section 97 of the S & CPA as inapplicable to All Federal courts or tribunals, would be conflating ‘State’ as used in that provision with that status under Public International Law – that is, Nigeria as a sovereign, independent State. It is obvious that that notion is a fallacy. Unfortunately, the S & CPA does not define ‘State’. However, it’s definition of ‘court’ (in Section 19(1) and 95), leaves no doubt that it includes the Federal High Court.

Conclusion

Hopefully, in the not-too-distant future, the Apex Court will review its position on the scope of Section 97 of the S & CPA. That would be an opportunity for the court to make a holistic and comprehensive assessment of the S & CPA vis-à-vis the intention of the Legislature. Should the interpretation of Section 97 thereof be based simply on the definition of ‘State’ in terms of Public International Law, or should it, rather, be based on its meaning under the Constitution? Should  the definition of ‘Court’ in the S & CPA be restricted to only State High Courts and High Court of the FCT, or should it include non-State courts, such as the Federal High Court, the National Industrial Court, the Court of Appeal, Election Petition Tribunals, etc? That is the question.